International Jus Cogens
![handle is hein.journals/tlr43 and id is 495 raw text is: INTERNATIONAL JUS COGENS?
GEORG SCHWARZENBERGER*
International jus cogens and international public policy are synonyms,
conveying the idea of rules of international law which may not be
changed by consent between individual subjects of international law.
In the following paper, Professor Schwarsenberger critically analyses
this concept on the levels of international customary law and treaty
law, with particular reference to the relevant provisions of the draft
convention on treaties, recently prepared by the International Law
Commission of the United Nations.
The problem of international jus cogens can be stated in a simple
question: Are there rules of international law which, by consent, individual
subjects of international law may not modify?
The International Law Commission of the United Nations has given a
topical character to the issue. In article 37 of its draft convention on the law
of treaties, entitled Treaties conflicting with a peremptory norm of general
international law (jus cogens), it has codified, or developed, the law on the
subject as follows: A treaty is void if it conflicts with a peremptory norm of
general international law from which no derogation is permitted and which
can be modified only by a subsequent norm of general international law having
the same character.1
The views of the Commission, as these emerge from the text of the above
draft article, the Commission's commentary,2 and the published precis of the
discussions in the Commission,3 can be summarized under three heads:
(1) The Commission understands by international jus cogens-as distin-
guished from international jus dispositivuni-peremptory rules of general
international law in a sense analogous to public policy and similar terms of
municipal law.4 (2) Individual parties may not contract out of such inter-
* of Gray's Inn, Barrister-at-Law; Professor of International Law in the University
of London; Vice-Dean, Faculty of Laws, University College, London.
158 Am. J. INT'L L. 264 (1964).
2 1d. at 264-66.
3 1 INTERNATIONAL LAW COMMISSION YEARBOOK 1963, at 213 et seq. (A/CN.
4/SER.A/1963) (1964).
4For a discussion on this topic in the Third Committee of the General Assembly
in the context of the draft Covenants on Human Rights, see 3d Comm., Summary
Records 237 et seq. (1959) ; id. at 61 et seq. (1961). In the Case Concerning the Pay-
ment of Various Serbian Loans Issued in France, P.C.I.J., ser. A, No. 14, at 46 (1929),
and the Case Concerning the Payment in Gold of the Brazilian Federal Loans Issued
in France, P.C.I.J., ser. A, No. 15, at 125 (1929), the Permanent Court of International
Justice observed that the definition of national public policy in any particular country
is largely dependent on the opinion prevailing at any given time in such country
itself .. . . See also the Case Concerning the Application of the Convention of 1902
Governing the Guardianship of Infants (Netherlands v. Sweden), [1958] I.C.J. Rep. 55,
122-23 (Spender, J., separate opinion); FRIEDMANN, LEGAL THEORY 496-501 (4th ed.
1960); GRAvESON, THE CONFLICT OF LAWS 563-69 (1960); HAZARD & SHAPIRO, THE
455](ViewImageLocal?handle=hein.journals/tlr43&div=49&collection=&method=preview&ext=.png&size=3)
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